Citation: R v Whalley (a pseudonym) [2022] NSWDC 662
Court: District Court of New South Wales
Date: 28 November 2022
Judge: Colefax SC DCJ
Background
The offender, referred to by the pseudonym "Whalley", was sentenced following a guilty plea to one principal offence of persistent sexual abuse of a child, contrary to section 66EA of the Crimes Act 1900 (NSW). He was also sentenced in respect of two additional matters on a Form 1 certificate, each involving sexual intercourse with a person aged between 16 and 17 years while in his care.
The offending concerned Whalley's stepdaughter, referred to by the pseudonym "Rose". Whalley commenced a relationship with Rose's mother when Rose was approximately 11 years old, and he moved into the family home. He began grooming Rose through gifts, inappropriate remarks, and the deliberate undermining of her mother's authority. The grooming escalated to serious criminal conduct from approximately the time Whalley married Rose's mother in July 2003, when Rose was 12.
The agreed statement of facts particularised 14 discrete incidents as examples of the sexual abuse, which the court noted were described in that document as "some examples" only. The abuse included digital penetration, penile-vaginal intercourse, cunnilingus, forced fellatio, the provision of cannabis to Rose on multiple occasions, and an incident involving the use of a dog. The abuse spanned a number of years.
Legal Issues
- What sentence was appropriate for the principal offence of persistent sexual abuse of a child under section 66EA of the Crimes Act 1900, having regard to the objective seriousness of the offending and the applicable sentencing principles?
- What weight should be given to the offender's guilty plea in calculating the appropriate discount?
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the head sentence.
Decision
The court identified the offending as extremely serious. The agreed facts described 14 particularised incidents involving a range of sexual acts, occurring over multiple years, beginning when the victim was 12 years old. The judge observed that the offender was in a position of trust as Rose's stepfather, had deliberately groomed her over an extended period, had knowingly continued conduct despite her lack of consent, and had on multiple occasions provided cannabis to facilitate the abuse.
The judge noted that for offences against children, the predominant sentencing consideration is general deterrence, and that such offending requires condign and severe punishment. The offender's lack of prior adult convictions was given reduced weight, both because it carries less significance in the context of child sexual offences and because of the duration of the offending conduct.
The court determined that, but for the guilty plea, a sentence of 20 years' imprisonment would have been appropriate. A 25 percent discount was applied for the early guilty plea, reducing the sentence to 15 years. The judge declined to make a finding of special circumstances to alter the statutory ratio, finding that the need for rehabilitation did not require a shorter parole period and that being a first-time prisoner was not a sufficiently persuasive factor.
Orders Made
- Principal offence (sequence 29, persistent sexual abuse of a child): sentenced to 15 years' imprisonment.
- Non-parole period of 11 years and 3 months, commencing 15 June 2021 and expiring 14 September 2032.
- Balance of sentence of 3 years and 9 months, commencing 15 September 2032 and expiring 14 June 2036.
- Two Form 1 matters (sequences 27 and 30) taken into account in sentencing.
- No finding of special circumstances made.
Key Takeaways
- For child sexual offences under section 66EA of the Crimes Act 1900, the District Court confirmed that general deterrence is the predominant sentencing consideration, requiring severe and condign punishment.
- A guilty plea resulting in a 25 percent discount remains available even for the most serious child sexual offences, provided the plea is entered at an early stage.
- An offender's lack of prior adult criminal history carries reduced weight in sentencing for offences against children, particularly where the offending extended over a prolonged period.
- No finding of special circumstances was warranted merely because the offender had no prior custodial experience; the court found this an insufficiently compelling basis to alter the statutory non-parole ratio.
- Under section 66EA as amended in 2018, the maximum penalty for persistent sexual abuse of a child was increased to life imprisonment, with no standard non-parole period, reflecting a clear parliamentary intention regarding the gravity of such conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), sections 66EA, 66EA(8), 66C(2), and 66C(4)
Cases cited: No cases were cited in the judgment.